IN THE CASE OF:	  

		BOARD DATE:	        06 JANUARY 2009

		DOCKET NUMBER:  AR20080016003 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to reflect that he was medically discharged with a 30% disability rating. 

2.  The applicant states, in effect, that he was medically discharged with a 30% disability rating for a left knee injury.  However, when he applied for Department of Veterans Affairs (VA) benefits he was told that he had been medically discharged for a shoulder injury with a 0% disability rating.  

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He enlisted in the Regular Army on 13 January 1993 for a period of 3 years and training as an infantryman.  He completed his one-station unit training (OSUT) at Fort Benning, Georgia and was transferred to Berlin, Germany on 2 May 1993.  On 12 July 1993, he deployed with his unit to Macedonia in support of Operation Able Sentry for 6 months.  He was advanced to the pay grade of    E-3 on 13 January 1994.

3.  He departed Germany on 15 July 1994 and was transferred to Fort Campbell, Kentucky.

4.  On 21 February 1995, a Medical Evaluation Board (MEB) convened at Fort Campbell to evaluate the applicant's complaint of left knee pain.  The MEB determined that the applicant suffered from patellofemoral pain syndrome and that he was medically unacceptable for retention.  The MEB recommended that he be referred to a Physical Evaluation Board (PEB).  The applicant indicated that he did not desire to continue on active duty and that he agreed with the findings and recommendations of the MEB.

5.  On 14 March 1995, a PEB convened at Walter Reed Army Medical Center (WRAMC) in Washington, DC. to consider the applicant's medically diagnosed condition of patellofemoral pain syndrome left knee with chrondromalacia.  The PEB determined that his disability should be rated as 10% disabling and recommended that he be discharged with severance pay with a 10% disability rating.

6.  The applicant concurred with the findings and recommendations of the PEB on 24 March 1995.

7.  Accordingly, he was honorably discharged on 2 May 1995 under the provisions of Army Regulation 635-40, paragraph 4-24B(3), due to Disability with Severance Pay (10%).  He had served 2 years, 3 months and 20 days of total active service and was paid $4,198.80 in severance pay benefits.

8.  A review of the applicant's official records fails to show that he was ever evaluated for a shoulder injury or that he was ever awarded a 30% disability rating by the Army. 

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  That regulation also provides the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.  There is a difference between the Department of Veterans Affairs (VA) and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.  Individuals who receive a disability rating of 30% or higher are retired by reason of physical disability instead of being discharged with severance pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and appear to lack merit.  The applicant was medically evaluated for left knee pain and was subsequently discharged by reason of disability with severance pay with a 10% disability rating.

2.  There is no evidence in the applicant's official records to show that he was ever evaluated for a shoulder injury or that he was ever awarded a 30% disability rating by the Army.  Likewise, the applicant has not provided any such documentation to support his contentions or disprove the evidence of record.

3.  The applicant has not provided sufficient evidence to show that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.


      _______ _ XXX  _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080016003





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ABCMR Record of Proceedings (cont)                                         AR20080016003



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